Appellate standards of review.

Soon, all appellate briefs filed in Florida may have to contain a discussion of relevant standards of review. This practice is already required of briefs filed in the 11th Circuit Court of Appeals, see 11th Cir. R. 28-2 (I) (iii), Fed. R. App. P. 28, and state procedural rules may soon require them. See proposed change to Fla. R. App. P. 9.210 (b)(5).

This article explores the various standards of review applicable to state appeals, with specific attention given to some of the more commonly faced issues arising in civil and criminal appellate practice. For more extensive discussion, readers are encouraged to consult, e.g., Padavano, Florida Appellate Practice (2d ed. 1997), and Childress and Davis, Federal Standards of Review (2d ed. 1991).

Nearly all trial level decisions can be classified into one of three categories: decisions of fact, decisions of law, and discretionary decisions. The selection of an appropriate standard of review centers on the type of decision made.

Decisions of Fact

Because trial courts are generally in a better position to assess the characteristics of testimony or other evidence they admit, appellate courts defer to the trial court to resolve factual questions. Shaw v. Shaw, 334 So. 2d 1 (Fla. 1976). This is the case, for example, when assessing witness credibility or assigning weight to the evidence and occurs in the jury trial, nonjury trial, evidentiary, and administrative hearing contexts. See, e.g., Gulf Coast Co-op, Inc. v. Clark, 674 So. 2d 120 (Fla. 1966) (administrative); White v. State, 446 So. 2d 1031 (Fla. 1984) (jury); Clegg v. Chipola Aviation, Inc., 458 So. 2d 1186 (Fla. 1st DCA 1984) (nonjury); State v. Garcia, 431 So. 2d 651 (Fla. 3d DCA 1983) (motion to suppress evidentiary hearing).

If the evidence presented below is undisputed, and the factual finding is merely an inference drawn from it, the standard of review is whether the record shows competent substantial evidence to support the order or judgment. See SEDS, Inc. v. Hartford Fire Ins. Co., 724 So. 2d 1258 (Fla. 4th DCA 1999); The Florida Bar v. Siegel, 511 So. 2d 995 (Fla. 1987). On the other hand, if the evidence is disputed, appellate courts use the less restrictive clearly erroneous standard of review. As the Supreme Court explained:

A finding of fact by the trial court in a nonjury case will not be set aside on review unless there is no substantial evidence to sustain it, unless it is clearly against the weight of the evidence, or unless it was induced by an erroneous view of the law. A finding which rests on conclusions drawn from undisputed evidence, rather than on conflicts in the testimony, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion. 3 Am Jur. 471. When the appellate court is convinced that an express or inferential finding of the trial court is without support of any substantial evidence, is clearly against the weight of the evidence or that the trial court has misapplied the law to the established facts, the decision is "clearly erroneous" and the appellate court will reverse because the trial court has "failed to give legal effect to the evidence" in its entirety.

Holland v. Gross, 89 So. 2d 255, 258-59 (Fla. 1956).

Thus, because jury verdicts and nonjury findings unquestionably rest on factual determinations, appellate courts look to see whether the record contains competent substantial evidence to support the decision. See Helman v. Seaboard Coast Line R.R. Co., 349 So. 2d 1187 (Fla. 1977) (jury); Abreau v. Amaro, 534 So. 2d 771 (Fla. 3d DCA 1988) (nonjury); State v. Garcia, 431 So. 2d 651 (Fla. 3d DCA 1983) (evidentiary hearing); Gershanik v. Dept. of Prof'l Regulation, Bd. of Med. Examiners, 438 So. 2d 302 (Fla. 3d DCA 1984) (administrative). But see Gen. Tele. Co. of Florida v. Florida Pub. Serv. Comm., 446 So. 2d 1063 (Fla. 1984) (arbitrary and capricious standard used when reviewing administrative rule-making authority); see generally Florida Appellate Practice [sections] 9.6 at 156.

Finally, it should be noted that Florida's competent substantial evidence test is consistent with the clearly erroneous test under federal law. See, e.g., Pullman-Standard v. Swint, 456 U.S. 273 (1982); Rule 52(a), Fed. R. Civ. P.

Decisions of Law

Where the decision rests either on a pure matter of law or on documentary evidence that can be evaluated equally well by the appellate and trial courts, the standard of review is de novo. De novo review, or "free review," see Federal Standards of Review [sections] 2.14 Vol. I at 276, means simply that "although the trial court is presumed to be correct, the appellate court is free to decide the legal issue differently without paying deference to the trial court's review of the law." Padavano, Standards of Review in Criminal Cases at 5 (unpublished manuscript of address to Florida Public Defender Association Seminar (February 17, 1999)).

The principle here is that, in matters of law, the trial court is not in a superior position to evaluate questions and the appellate court may reach its own conclusion independent of the decision of a lower court. For example, because issues of statutory construction and interpretation of a written instrument can be equally determined by either level of court, the de novo standard is appropriate for such review. See, e.g., Racetrac Petroleum, Inc. v. Delco Oil, Inc, 721 So. 2d 376 (Fla. 5th DCA 1998) (statutory construction); Angell v. Don Jones Ins. Agency, Inc., 620 So. 2d 1012 (Fla. 2d DCA 1993) (interpretation of employment contract).

Similarly, where the trial court dismisses a complaint or directs judgment as a matter of law (e.g., summary judgment or directed verdict), the appellate court applies the de novo standard of review. See, e.g., Menendez v. The Palms West Condominium Ass'n, Inc., 736 So. 2d 58 (Fla. 1st DCA 1999) (summary judgment); Rittman v. All State Ins. Co., 727 So. 2d 391 (Fla. 1st DCA 1999) (dismissing complaint for failure to state a cause of action); Plotch v. Gregory, 463 So. 2d 432 (Fla. 4th DCA 1985).

In the summary judgment and directed verdict contexts, the test is whether there are factual questions whose resolution would permit a reasonable jury to decide in a different way than that directed by the court. See Moore v. Morris, 475 So. 2d 666 (Fla. 1985). In both contexts, appellate review is actually a twostep process: 1) whether a genuine issue (or, in the case of the directed verdict, a disputed issue) of material fact exists; and 2) whether the trial court applied the correct rule of law. See Florida Appellate Practice [sections] 9.4 at 148-49.

Finally, it should be noted that Florida's use of de novo review is consistent with that of federal law. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995).

Discretionary Decisions

The third category of decision concerns those exercised in the trial court's discretion; here, appellate courts will not reverse absent an abuse of discretion. See Mercer v. Raine, 443 So. 2d 944 (Fla. 1983).

The test for whether discretion has been abused is one of reasonableness--that is "[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). Said another way, discretion has been abused where the decision is "arbitrary, fanciful or unreasonable." Delno v. Market Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942), cited approvingly in Canakaris, 382 So. 2d at 1203.

The substantive areas traditionally left to trial court discretion include injunctive relief and matters of family law.

Wide discretion rests in the trial court in granting, denying, or modifying injunctions. An appellate court will not interfere with the exercise of this discretion unless some abuse thereof is clearly made to appear, or unless the trial court's ruling is clearly improper. A presumption exists as to the correctness of the ruling of the trial court, and the burden is on the appellant to make error appear.

Duvallon v. Duvallon, 409 So. 2d 1162, 1163 (Fla. 3d DCA 1982).

However, a distinction should be drawn between injunctive orders resting on purely legal grounds (de novo standard of review) and those resting on factual grounds (abuse of discretion standard of review). Compare Operation Rescue, et al. v. Women's Health Ctr., Inc., 626 So. 2d 664 (Fla. 1993), with Zeskind v. Jockey Club Condominium Apartments, Unit No. II, Inc., 468 So. 2d 1021 (Fla. 3d DCA), review denied, 479 So. 2d 119 (Fla. 1985) (reviewing fact-based injunctions according to competent substantial evidence test).

Recognizing the need for discretion in the family law area, the Supreme Court explained:

Our trial judges are granted this discretionary power because it is impossible to establish strict rules of law for every conceivable situation which could arise in the course of a domestic relations proceeding. The trial judge can ordinarily best determine what is appropriate and just because only he can personally observe the participants and events of the trial.

Canakaris, 382 So. 2d at 1202.

As such, the abuse of discretion standard has been used to review cases involving the dissolution of marriage and child custody, Canakaris, the award of alimony, Kuvin v. Kuvin, 442 So. 2d 203 (1983), and the distribution of marital property. Troncini v. Troncini, 466 So. 2d 203 (Fla. 1983).

Here, too, a distinction must be drawn between orders based purely on application of the law (de novo standard of review) and those based on an equitable resolution of the facts of the particular case (abuse of discretion standard of review). See Walter v. Walter, 464 So. 2d 538, 539 (Fla. 1985). An example of the former type of order is discussed in Grapin v. Grapin, 450 So. 2d 853 (Fla. 1984), wherein a trial court order expanding support obligations for healthy, post-majority, children was reversed on purely legal grounds. In contrast, the district court in Brown v. Brown, 300 So. 2d 719 (Fla. 1st DCA 1974) used the abuse of discretion standard to review and reverse alimony and child custody awards.

Of necessity, trial courts must be granted discretion in the conduct and course of the proceedings before them. Appellate review of such procedural orders applies the abuse of discretion standard.

It is in their application that the significance of these standards becomes evident. Some of the more common decisions made by a trial court are highlighted below.

Pretrial Rulings

Discovery Orders. As stated above, trial courts are accorded great discretion in the manner and course of the proceedings over which they preside; the standard of review of such decisions is whether the trial court abused that discretion by its ruling. See Farish v. Lum's, Inc, 267 So. 2d 325, 327-28 (Fla. 1972):

The exercise of discretion by a trial judge who sees the parties first-hand and is more fully informed of the situation, is essential to the just and proper application of procedural rules. In the absence of facts showing an abuse of that discretion, the trial court's decision excusing, or refusing to excuse noncompliance with rules ... must be affirmed.... It is the duty of the trial court, and not the appellate courts, to make that determination.

Rulings on discovery issues are just the type of decisions properly left to the discretion of the trial judge and are reviewable under the abuse of discretion standard. See, e.g., State v. Tascarella, 580 So. 2d 154 (Fla. 1991); Mercer v. Raine, 443 So. 2d 944 (Fla. 1983).

Venue Orders. Similarly, orders on motions for change of venue will be upheld, absent a showing of palpable abuse of discretion. See Mills v. State, 462 So. 2d 1075 (Fla. 1985); Instrumentation Serv., Inc. v. Data Management, 708 So. 2d 1018 (Fla. 4th DCA 1998). Such an abuse of discretion was found in Browning-Ferris Industries Serv., Inc. v. Kargauer, 707 So. 2d 427 (Fla. 3d DCA 1998); see also Guaranty Title & Trust Co. v. First Guar. Title & Escrow of Florida, Inc., 684 So. 2d 219 (Fla. 3d DCA 1996).

Continuance Orders. The decision to grant or deny a motion for continuance is a matter of discretion and a trial court decision on such a motion will not be disturbed absent an abuse of discretion (i.e., one that unduly prejudices one or more of the parties). See Fennie v. State, 648 So. 2d 95 (Fla. 1994), cert. denied, 513 U.S. 1159 (1995) (motion made before, and during, trial); Flea Market, U.S.A., Inc. v. Cohen, 490 So. 2d 210 (Fla. 3d DCA 1986) (motion made on the eve of trial); see also Sliney v. State, 699 So. 2d 662 (Fla. 1997).

Consolidations and Severances. Decisions to consolidate or sever are left to the discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion. See, e.g., Crossley v. State, 596 So. 2d 447 (Fla. 1992); Daiuto v. State, 734 So. 2d 602 (Fla. 5th DCA 1999); Hutchinson v. State, 731 So. 2d 812 (Fla. 5th DCA 1999).

Jury Selection Rulings

Matters related to jury selection are commonly left to trial court discretion. For example, limitations placed on voir dire are permissible unless they constitute an abuse of discretion. See San Martin v. State, 717 So. 2d 462 (Fla. 1998) (whether to allow individual voir dire), cert. denied, U.S.L.W. 3641, 119 S.Ct. 1468,143 L.Ed.2d 553 (1994); Mizell v. New Kingsly Beach, Inc., 122 So. 2d 225 (Fla. 1st DCA 1960) (scope of questioning).

According to the Supreme Court of Florida, "It]here are few aspects of a jury trial where we would be less inclined to disturb a trial court's exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empaneling of a jury." Cook v. State, 542 So. 2d 964, 969 (Fla. 1989), cert. denied, 502 U.S. 890 (1991); see also Carrier v. Ramsey, 714 So. 2d 657 (Fla. 5th DCA 1998); but see Mendoza v. State, 700 So. 2d 670 (Fla. 1997) (applying manifest error standard), cert. denied, 67 U.S.L.W. 3231, 119 S.Ct. 101, 142 L.Ed.2d 81 (1998).

The abuse of discretion standard applies also to orders granting or denying a party's exercise of peremptory challenges. See Franqui v. State, 699 So. 2d 1332 (Fla. 1997); Chester v. State, 725 So. 2d 1274 (Fla. 3d DCA), dismissed, 729 So. 2d 389 (Fla. 1999); Hall v. Daee, 570 So. 2d 296 (Fla. 3d DCA 1990); see also Files v. State, 613 So. 2d 1301 (Fla. 1992) (determining whether peremptory strike is racially motivated).

Evidentiary Rulings

Admissibility of Evidence. The admissibility of evidence lies in the sound discretion of the trial court and trial court decisions on the matter will be affirmed absent a showing of abuse of discretion. See, e.g., Mendoza v. State, 700 So. 2d 670 (Fla. 1997), cert. denied, 67 U.S.L.W. 3231, 119 S.Ct. 101,142 L.Ed.2d 81 (1998); Jent v. State, 408 So. 2d 1024 (Fla. 1982); Beerman v. Rollar, 710 So. 2d 93 (Fla. 4th DCA 1998); Janke v. Corinthian Gardens, Inc., 405 So. 2d 740 (Fla. 4th DCA 1981), cert. denied, 413 So. 2d 876 (Fla. 1982).

Admissibility of Scientific or Expert Evidence. The same standard of review applies to trial court decisions admitting scientific or expert testimony; such decisions will not be overturned absent a finding of abuse of discretion. See Wainwright v. State, 704 So. 2d 511 (Fla. 1997) (DNA evidence); Cole v. State, 701 So. 2d 845 (Fla. 1997), cert. denied, 118 S.Ct. 1370, 140 L.Ed.2d 519 (1998) (photographic evidence); Vitt v. Ryder Truck Rentals, Inc., 340 So. 2d 962 (Fla. 3d DCA 1977) (experimental evidence); McMullen v. State, 714 So. 2d 368 (Fla. 1998) (expert testimony); accord Ramirez v. State, 542 So. 2d 352 (Fla. 1989); Meyer v. Caruso, 731 So. 2d 118 (Fla. 4th DCA 1999); Carrier v. Ramsey, 714 So. 2d 657 (Fla. 5th DCA 1998); Gershanik v. Dept. of Prof'l Regulation, Bd. of Med. Examiners, 458 So. 2d 302 (Fla. 3d DCA 1984).

Determining the Credibility of Testimony. Discussing the abuse of discretion standard applicable to reviewing credibility determinations, the Supreme Court held in Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976):

It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test ... is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court's right to reject "inherently incredible and improbable testimony or evidence," it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.

See also Smith v. Brown, 525 So. 2d 868 (Fla. 1988); Jalbert v. State, 95 So. 2d 589 (Fla. 1957) (nonjury); Ferry v. Abrams, 679 So. 2d 80 (Fla. 5th DCA 1996); California Club Ins. Co. v. Lucca, 517 So. 2d 72 (Fla. 3d DCA 1987).

Conduct and Argument Rulings

Propriety of Jury Arguments. Trial courts have the discretion to determine the propriety of comments made by counsel during opening and closing arguments and such determinations are reversible only upon a showing of abuse of discretion. See Hawk v. State, 718 So. 2d 159 (Fla. 1998) (opening statement); Knuck v. Willoughby, 198 So. 2d 839 (Fla. 3d DCA), cert. denied, 201 So. 2d 895 (Fla. 1967) (same); Etsy v. State, 642 So. 2d 1074 (Fla. 1994) (closing argument); Occhionne v. State, 570 So. 2d 902 (Fla. 1990), cert. denied, 500 U.S. 938 (1991) (same).

Allowing Party to Re-Open Case or Introduce Additional Evidence. It has long been established that allowing a party to re-open the case in order to introduce additional testimony or evidence is a matter of trial court discretion and that such rulings will not be overturned in the absence of an abuse of discretion. See Hoey v. Fletcher, 39 Fla. 325, 22 So. 716 (1897). More recently, supreme court and district court decisions have affirmed that principle. See, e.g., Stewart v. State, 420 So. 2d 862 (Fla. 1982), cert. denied, 460 U.S. 1103 (1983); Pitts v. State, 185 So. 2d 164 (Fla. 1966); Musselwhite v. Charboneau, 709 So. 2d 199 (Fla. 5th DCA 1998); Fitzhugh v. State, 698 So. 2d 571 (Fla. 1st DCA 1997).

Allowing Jury to Rehear Testimony. The abuse of discretion standard has been applied to review decisions allowing the jury to rehear trial testimony. See Henry v. State, 574 So. 2d 66 (Fla. 1991), cert. denied, 516 U.S. 830 (1995).

Sufficiency of Evidence Rulings

Determining the Weight and Factual Sufficiency of the Evidence. Determinations as to the manifest weight of evidence are generally left to the trial court. That is, the appellate court will not interfere with a jury verdict or, in the case of a nonjury trial, a judgment or trial court findings of fact unless the record shows the absence of competent substantial evidence to support the factual findings. See Kimbrough v. State, 700 So. 2d 634 (Fla. 1997); Terry v. State, 668 So. 2d 954 (Fla. 1996); Stroud v. Crosby, 712 So. 2d 434 (Fla. 2d DCA 1998) (undisputed evidence); Smith v. Sears, Roebuck & Co., 681 So. 2d 871 (Fla. 1st DCA 1996) (disputed evidence); Clegg v. Chipola Aviation Inc., 458 So. 2d 1186 (Fla. 1st DCA 1984).

Determining the Legal Sufficiency of the Evidence. When determining the legal sufficiency of the evidence, trial and appellate courts occupy equal footing and appellate courts apply the de novo standard of review.

The de novo standard has been applied, for example, to the review of rulings on motions for summary judgment, see Landis v. All State Ins. Co., 546 So. 2d 1051 (Fla. 1989); Florida Power Corp. v. Silver Lakes Homeowner's Ass' n, 727 So. 2d 1149 (Fla. 5th DCA 1999); motions for directed verdict, see Ritz v. Florida Patient's Compensation Fund, 436 So. 2d 987 (Fla. 5th DCA 1983), review denied, 450 So. 2d 488 (Fla. 1984); motions for judgment of acquittal, see, e.g., D.R. v. State, 24 Fla. L. Weekly D1134 (Fla. 1st DCA May 5, 1999), and judgments notwithstanding the verdict. See Neely v. Martin K Eby Constr. Co, 386 U.S. (1967); Stirling v. Sapp, 229 So. 2d 850 (Fla. 1969).

Post-Trial Rulings

Allowing Rehearing in Nonjury Case. The decision to grant rehearing rests in the sound discretion of the trial court and will be reversed only where there has been an abuse of that discretion. See Hollywood, Inc. v. Clark, 15 So. 2d 175 (Fla. 1943); Shuman v. Winnick, 725 So. 2d 1199 (Fla. 5th DCA 1999); Musselwhite v. Charboneau, 709 So. 2d 199 (Fla. 5th DCA 1998).

Of course, direct appellate review of an order denying a motion for rehearing is not available. See Florida Living for the Retired, Inc. v. Retirement Hotel Associates, Inc., 167 So. 2d 83 (Fla. 3d DCA 1964); Oxford v. Polk Federal Sav.& Loan Ass'n of Lakeland, 147 So. 2d 603 (Fla. 2d DCA 1962).

Rulings on Motion for Mistrial. "[T]he question of whether a mistrial is proper falls within the trial court's discretion and should not be granted unless an absolute legal necessity to do so exists." Palmer v. State, 486 So. 2d 22, 23 (Fla. 1st DCA 1986). Accordingly, the abuse of discretion standard applies when reviewing an order granting or denying a motion for mistrial. See Jones v. State, 1999 WL 569558 (Aug. 5, 1999) (Lawrence, J. dissenting).

Rulings on Motion for New Trial. The power to grant or deny a motion for new trial rests with the trial court. The standard of review here, as with other discretionary acts, is whether the court abused its discretion. The Supreme Court in Baptist Memorial Hospital, Inc. v. Bell, 384 So. 2d 145, 146 (Fla. 1980) explained the test applied to such review:

In reviewing this type of discretionary act of the trial court, the appellate court should apply the reasonableness test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). As we stated in Cloud [Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959)], the ruling should not be disturbed in the absence of a clear showing that it has been abused, and there has been no such showing in the instant case.

A greater showing of abuse is required to overturn an order granting a new trial than an order denying one. See Castlewood Int'l. Corp. v. LeFleur, 322 So. 2d 520, 522 n.2 (Fla. 1975). Moreover, where the new trial order is based on legal errors committed at trial or as a remedy for unpreserved error, appellate courts apply the de novo standard of review. See Tri-Park Machinery, Inc. v. Hartshorn, 644 So. 2d 118 (Fla. 2d DCA 1994); and Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996), respectively.

Specific Examples

* Civil Practice Issues De novo standard:

1) allowing defense of qualified immunity, see Post v. City of Ft. Lauderdale, 7 F.3d 1552 (11th Cir. 1993).

2) interpreting terms of contract, see Burns v. Barfield, 732 So. 2d 1202 (Fla. 4th DCA 1999).

3) granting motion for judgment notwithstanding the verdict, see Hendricks v. Dailey, 208 So. 2d 101 (Fla. 1968); Duhlin v. Circle F Indus., 558 F.2d 456 (8th Cir. 1977).

Competent substantial evidence standard:

1) determining the credibility of witnesses, see Bijlani v. Pioneer House Assoc., 719 So. 2d 377 (Fla. 3d DCA 1998); Ferry v. Abrams, 679 So. 2d 80 (Fla. 5th DCA 1996).

2) finding sufficient evidence to support jury verdict, see DuPuis v. 79th Street Hotel, Inc., 231 So. 2d 532 (Fla. 3d DCA), cert. denied, 238 So. 2d 105 (Fla. 1970); Long v. City of Winter Park, 70 So. 2d 576 (Fla. 1954).

Abuse of discretion standard:

1) default final judgments, see Maranto v. Dearborn, 687 So. 2d 940 (Fla. 3d DCA 1997); Williamson v. Bertino, 685 So. 2d 93 (Fla. 4th DCA 1997); Collins v. Collins, 519 So. 2d 729 (Fla. 2d DCA 1988) (vacate final default judgment); accord DeRuyter v. State, 521 So. 2d 135 (Fla. 5th DCA 1988); but see Gibralter v. Associates, Inc., 488 So. 2d 582 (Fla. 4th DCA 1986) (greater showing required to overturn order granting motion to vacate default than order denying it).

2) remittitur, see Orlando Executive Park, Inc. v. P.D.R., 402 So. 2d 442 (Fla. 5th DCA), rev. denied, 411 So. 2d 384 (Fla. 1981).

3) vacating judgment pursuant to Florida Rule of Civil Procedure 1.540, see Shields v. Fiinn, 528 So. 2d 967 (Fla. 3d DCA 1988); California Club Ins. Co. v. Lucca, 517 So. 2d 72 (Fla. 3d DCA 1987).

4) awarding costs, see Goslin v. Racal Data Communications, Inc., 468 So. 2d 390 (Fla. 3d DCA), rev. denied, 411 So. 2d 384 (Fla. 1981).

5) setting amount of attorney's fees, see In re Estate of McArthur, 443 So. 2d 1052 (Fla. 4th DCA 1984).

* Criminal Practice Issues

De novo standard:

1) rulings on motions to suppress deciding purely legal issues, see Escobar v. State, 699 So. 2d 988 (Fla. 1997), cert. denied, 118 S.Ct. 1512 (1998) (voluntariness of confession); see also United States v. MonteroCamargo, 177 F. 3d 1113 (9th Cir. 1999) (existence of reasonable suspician to stop and entitlement to Miranda warnings reviewed de novo).

2) entitlement to belated appeal, see Leath v. State, 694 So. 2d 855 (Fla. 4th DCA 1997).

Competent substantial evidence standard:

1) rulings on motion to suppress deciding purely factual issues, see Caso v. State, 524 So. 2d 422 (Fla. 1988), cert. denied, 488 U.S. 870 (1988) (whether defendant custodialized during interrogation; see also Jorganson v. State, 714 So. 2d 423 (Fla. 1998) (ability to consent to search).

2) post-conviction relief pursuant to Fla. R. Crim. P. 3.850, see Diaz v. Duggar, 719 So. 2d 865 (Fla. 1987), cert. denied, 484 U.S. 1079 (1988); Melendez v. State, 718 So. 2d 746 (Fla. 1988).

Abuse of discretion standard:

1) competency to stand trial, see Hardy v. State, 716 So. 2d 761 (Fla. 1988).

2) speedy trial, see Zeigler v. State, 402 So. 2d 365 (Fla. 1981) (granting extension of speedy trial time, question of fact); accord Westberry v. State, 700 So. 2d 1236 (Fla. 1st DCA 1997); note that where the order concerns the application of Fla. R. Crim. P. 3.190 (governing speedy trials), use the de novo standard of review.

3) granting motion to waive trial by jury, see United States v. Saadya, 750 F.2d 1419 (9th Cir. 1985).

4) withdrawal of nolo or guilty pleas, see Hunt v. State, 613 So. 2d 893 (Fla. 1992); Porter v. State, 564 So. 2d 1060 (Fla. 1990), cert. denied, 498 U.S. 1110 (1991).

5) sentencing, see Smith v. State, 710 So. 2d 753 (Fla. 4th DCA 1998) (sentencing guidelines departure); Bernhardt v. State, 288 So. 2d 490 (Fla. 1974) (probation revocation); Davis v. State, 704 So. 2d 681 (Fla. 1st DCA 1997) (community control revocation).

The interplay among standards of review can be seen, for example, in two criminal law contexts: sufficiency of the evidence and some sentencing decisions.

Sufficiency of the Evidence

Legal sufficiency of the evidence--that is, whether the evidence adduced by the state, if believed, could constitute proof beyond a reasonable doubt on every element of the crime charged--is a matter equally determinable by trial and appellate courts, and therefore subject to the de novo standard of appellate review. See Tibbs v. State, 397 So. 2d 1120 (Fla. 1981), aff'd, 457 U.S. 31 (1982); D.R.v. State, 24 Fla. L. Weekly D1134 (Fla. 1st DCA 1999).

Factual sufficiency, on the other hand, concerns whether the evidence presented was sufficient in weight and credibility to support the verdict and judgment. Because appellate courts cannot reassess either of these characteristics of evidence, and routinely defer such consideration to the trial court, factual sufficiency is reviewable according to the competent substantial evidence test. See State v. Smyly, 646 So. 2d 238 (Fla. 4th DCA 1994); Bradford v. State, 460 So. 2d 926 (Fla. 2d DCA 1984).

Moreover, where the evidence is wholly circumstantial, see State v. Law, 559 So. 2d 187, 188 (Fla. 1989), factual sufficiency is determined by whether the evidence is inconsistent with any reasonable hypothesis of innocence (jury question) and whether the state presented competent substantial evidence to support the jury verdict. See Toole v. State, 472 So. 2d 1174 (Fla. 1985); Heiney v. State, 447 So. 2d 210 (Fla. 1984).

Sentencing

Maneuvering among standards of review in the sentencing area is demonstrated by Blanco v. State, 706 So. 2d 7 (Fla. 1997), in which the Supreme Court used all three standards to review the imposition of a death sentence following a murder conviction. As one of his nonstatutory mitigating circumstances, Blanco put forth his impoverished background. The trial court accepted the mitigator, but then imposed the death penalty.

Blanco argued that the trial court failed to give sufficient weight to the mitigator. On review, the Supreme Court's decision rested on the application of the different standards of review:

The Court in Campbell v. State, 571 So. 2d 415 (Fla. 1990), established relevant standards of review for mitigating circumstances: 1) Whether a particular circumstance is truly mitigating in nature is a question of law and subject to de novo review by this Court; 2) whether a mitigating circumstance has been established by the evidence in a given case is a question of fact and subject to the competent substantial evidence standard; and finally, 3) the weight assigned to a mitigating circumstance is within the trial court's discretion and subject to the abuse of discretion standard.

Applying this law to the present case, we find no error. First, the circumstance of impoverished childhood is mitigating in nature and qualifies for treatment as a mitigating circumstance. Second, competent substantial evidence supports the court's finding that this circumstance was established in this case. And finally, the court did not abuse its discretion in assigning this circumstance little weight, for we cannot say that no reasonable person would give this circumstance slight weight in the calculus of this crime. (footnotes omitted)

Blanco, 706 So. 2d at 10-11.

Mixed Questions of Law and Fact

As discussed above, some cases involve issues that necessitate the application of two or more standards of review, depending on whether the precise issue for review is one of law or one of fact.

For example, a trial court ruling that the defendant, charged with a misdemeanor in a criminal case, does not have the right to waive jury trial constitutes an error of law, reviewable de novo. See Patton v. United States, 281 U.S. 276 (1930). On the other hand, a factual finding as to the voluntariness of the above waiver is reviewable using the abuse of discretion standard. See, e.g., Peede v. State, 474 So. 2d 808 (Fla. 1985) (voluntariness of waiver of right to be present at trial), cert. denied, 477 U.S. 909 (1986); Holmes v. State, 374 So. 2d 944 (Fla. 1979) (voluntariness of motion to withdraw plea), cert. denied, 446 U.S. 913 (1980). See also Butler v. State, 706 So. 2d 100 (Fla. 1st DCA 1998) (rulings on motions to suppress mixed questions of law and fact using different appellate standards of review).

The choice of standards depends on which aspect (legal or factual) of the ruling is to be reviewed: "In sum, perhaps the clearest way to approach mixed law-fact questions is to allow free review of legal conclusions and legal effects, while deferring to determinations of underlying facts and even factual inferences." Federal Standards of Review [sections] 2.18 at 2-133.

Certiorari

There are three types of certiorari review in Florida appellate courts: 1) district court review of a final order by the circuit court acting in its appellate capacity, 2) district court or circuit court review of nonfinal lower tribunal orders which are not enumerated in Fla. R. App. P. 9.130 and 3) circuit court review of orders entered by a local administrative body when such review is not authorized by statute. See Fla. Const. Art. V; Fla. R. App. P. 9.030 (b)(2) and (c)(3); Florida Appellate Practice [sections] 9.7.

The standard of review applicable to the first type of certiorari (reviewing a circuit court appellate decision) is whether the lower court departed from essential requirements of law resulting in a miscarriage of justice. See Combs v. State, 436 So. 2d 93 (Fla. 1983).

The standard of review applicable to the second type of certiorari (reviewing nonfinal orders) is, again, whether the order constituted a departure from the essential requirements of law and, secondly, whether the harm (material injury) can be cured on appeal from the final judgment. See Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987).

The standard of review applicable to the last type (reviewing administrative decisions) is whether the administrative body accorded due process of law, observed the essential requirements of law and supported its findings by competent substantial evidence. See Haines City Community Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995).

Conclusion

Appellate standards of review occupy a singularly important role in the disposition of cases. Judge Goldbold of the 11th Circuit Court of Appeals calls them"the appellate judge's measuring stick," John C. Goldbold, Twenty Pages and Twenty Minutes--Effective Advocacy on Appeal, 30 S.W.L.J. 810 (1976). Childress and Davis opine: "[F]rom an angle of empowerment, a review standard describes the positive authority the appellate court wields in its review function. The court decides how incorrect the decision below was and whether that reaches a reversible level." Federal Standards of Review, [sections] 1.01 at 1-3.

From the practitioner's perspective, persuading the court to use a more favorable standard of review could make all the difference in the outcome of your appeal. See, e.g., Somerville, Standards of Appellate Review, in Appellate Practice Manual 16 (Priscilla Anne Schwab ed. 1992).

At a minimum, isolating the correct standard of review should be the starting point for analyzing any appellate law issue.

[1] In October, 1999, the Appellate Court Rules Committee of The Florida Bar recommended that FLA. R. App. P. 9.210 be amended to require that initial briefs contain a statement of applicable standards of review. The proposal has been referred to the Board of Governors and, if approved, will be submitted to the Florida Supreme Court in April 2000. If adopted, the provision will become effective January 1, 2001.

Harvey J. Sepler, J.D., Ph.D., is an assistant public defender (appeals division) in Miami. He serves on the executive councils of the Appellate Practice Section and Criminal Law Section, of which he is chair-elect.

This article is reprinted, with permission, from a chapter in the forthcoming Appellate Practice Manual (The Florida Bar CLE Publications), and is submitted on behalf of the Appellate Practice Section, Lucinda Hofmann, chair.